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[2017] ZAFSHC 14
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Anderson v Komphela and Others (1014/2016) [2017] ZAFSHC 14 (19 January 2017)
I
N
THE HIGH
COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION, BLOEMFONTEI
N
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Case
No.: 1014/2016
In the
matter between:
SUSARA
SUSANNA
ANDERSON
Applicant
and
BUTANA
MOSES
KOMPHELA
1
ST
Respondent
CECILIA
EILEEN
NOMBUISELO
KOMPHELA
2
ND
Respondent
THE
BODY CORPORATE
OF
PINEWOOD
3
RD
Respondent
THE
SHERI FF FOR THE DISTRICT
BLOEMFONTEIN
EAST
4
TH
Respondent
THE
REGISTRAR
OF
DEEDS
5
TH
Respondent
HEARD
ON:
1
SEPTEMBER
2016
JUDGMENT
BY:
C. REINDERS,
J
DELIVERED
ON:
19
JANUARY
2017
[1]
During
2003
the applicant, Susara Susanna Anderson, (Ms Anderson) bought a
property known as Unit number 6 Pinewood ("the property")
in Bloemfontein. Ms Anderson applies for a declaratory order that she
is the owner of the property and that she never lost her
ownership as
a result of a sale in execution held on
15th
October
2014
("the
sale"). She also applies for ancillary relief flowing from the
main relief.
[2]
Butana Moses Komphela ("Mr Komphela") and Cecilia Eileen
Nombuiselo Komphela ("Ms Komphela") are the first
and
second respondents respectively. It is common cause that the property
was bought by them at the sale held by the Sheriff of
the
Magistrate's Court, Bloemfontein, and subsequently registered in
their names on
30
June
2015.
[3] The
third respondent is the body corporate of Pinewood ("Pinewood").
The Sheriff for the District of Bloemfontein
East and the Registrar
of Deeds are the fourth and fifth respondents respectively.
[4] The
relief sought by the applicant is based thereon that the
authorisation for the attachment of the property which gave rise
to
the sale in execution thereof to the first and second respondents was
without judicial oversight and therefore the sale and
transfer is
null and void.
Vide:
Jaftha v
Schoeman
and
Others;
Van
Rooyen
v
Stoltz and Others
2005(2)
SA
1
40
(CC)
[5] The
declarotor and relief required is sought by way of notice of motion.
Even though the facts are in essence common cause,
alternatively not
seriously disputed, I am to deal with the matter on the basis of the
first three respondents' versions.
Vide:
Plascon-Evans
Paints
Ltd
v
Van
Riebeeck
Paints
(Pty)
Ltd
1
984
(3)
623 (A)
[6] These
facts are that on the
4th
of December
2008
a
default judgment was granted in favour of Pinewood against the
applicant in the Bloemfontein Magistrate's Court. A warrant of
execution against moveable property resulted in a
nu/la
bona
return. An application in terms of section 66 (1)(a) of
the Magistrates' Act
32
of
1944
to declare the property specially executable was granted.
Pursuant thereto the property was sold, but before transfer was
effected
the warrant of execution and the sale of execution were
rescinded by court. The default judgment was not rescinded.
[7]
Eventually the matter was settled between Ms Anderson and Pinewood in
terms of a deed of settlement which was made an order
of court on the
23rd
December
2010.
In terms of Clause
2
of
the deed of settlement the applicant consented to the property being
executable in case of default (as is envisaged in clauses
3 and 4).
[8]
Pinewood avers that subsequent to the settlement applicant again fell
in arrears. It is common cause that various letters exchanged
hands
between the applicant's and Pinewood's attorneys since the
4th
of February
2011.
I do not intend to deal herewith safe to state that Pinewood's
attorneys acted pursuant to clause
5.2
of the deed of settlement which in essence provides that in
case of applicant's failure to make payments in terms of the
settlement
agreement, Pinewood had to give seven days written notice
to the applicant to remedy the breech, failure whereof Pinewood could
proceed without further notice to claim the outstanding amount by way
of execution against the property.
[9] As
mentioned this deed of settlement carried the approval of the
Magistrate's Court and was so ordered by consent between the
parties.
The upshot of the correspondence was that on the
15th
of October
2014
the
property was sold by way of a sale in execution by the Sheriff of
the Magistrate's Court Bloemfontein and on
30th
June
2015
duly
registered in the names of the first and second respondents.
[10] It
was not disputed by Mr Louw on behalf of the applicant that the deed
of settlement was made an order of court. It was rather
argued that
the order did not constitute authority for the clerk of the court to
issue a writ to attach the property or for the
sheriff to sell the
property and, so the argument runs, same only provided that the
applicant consents to an order in terms of
section 66 in the event of
payments in terms thereof not being made. It was submitted that the
provision requires that a .further
order be obtained and therefore
the execution creditor would have been obliged to comply with the
legal prescripts to obtain an
order as expounded in the Jaftha
decision
supra.
[11] Mr
Groenewald and Mr Els respectively appearing on behalf of the first
two respondents and the third respondent, submitted
that the
applicant consented to her property being sold in execution in the
event of her being in default. Mr Els in addition urged
me to find
that there are insurmountable disputes of facts on the papers which
should have been foreseen by the applicant and that
the matter should
be dismissed for that reason.
[12] I
was referred to case law where the court favourably considered the
terms of deeds of settlement providing that in the event
of the
debtor failing to comply with obligations the creditor would be able
to proceed to sell the property in execution.
Vide:
Rakolota
v
First
National
Bank
and
Others,
I
n
re: First
National Bank
v
Rakolota
(7896/2000)
[2014] ZAGPPHC
865
(unreported
judgment
dated
5
November
2014)
First
Rand
Bank
Limited
v
Nkata
2015
(2)
All
SA
264
(SCA)
[13]
In the
Rakolota
matter
supra
Phatudi
J
dealt
with
the
authorities pertaining
to
judicial
oversight and
came
to
the
conclusion that the
applicant
(in
that
matter)
willingly consented
to
his
property being
specifically
executable
in the
settlement
agreement
(at
par [27]
and
further).
It
suffices
to
say
that
I
respectfully
agree
with the views
he expressed.
[14]
In casu
it
is no
different.
In
clause 5.2
the applicant willingly
agreed
that
the
property
might
be
executed
in
case
of
failure
to comply. The
magistrate
was
so satisfied
and
issued such
an order. The
relevant part of the
clause
reads
as follows:
"
...by gebreke waarvan die vonnisskuldeiser sonder enige verdere
kennisgewing aan die vonnisskuldenaar betaling van die voile
verskuldigde balans van die skuld mag vorder by wyse van uitwinning
van die onroerende eiendom van die vonnisskuldenaar."
[15]
This
order
was
already
granted.
I fail
to
see
why
a further
similar order should
have been granted
by the
magistrate.
I am therefore satisfied
that
the
magistrate
(and
not
the
clerk
of
the
court
as
in
Jaftha's
case
supra)
ordered
the
sale
of the property if
necessary.
[16] The
result is that the application cannot succeed and I issue the
following order:
1.
The application is dismissed with costs.
________________________
C.
REINDERS, J
On
behalf of
Applicant:
Adv.
M.
Louw
Instructed
by:
Stander
&
Partners
BLOEMFONTEIN
On
behalf of
1
ST
and
2
ND
Respondents:
Adv. W.J. Groenewald
Instructed by:
Van der Berg Van Vuuren Attorneys
BLOEMFONTEIN
On
behalf of
3
RD
Respondent: Adv.
J.
H.
Els
Instructed by:
Symington
& De Kok
Attorneys
BLOEMFONTEIN